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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
UNITED STATES FILTER CORPORATION
AND
THE PERSONS AND ENTITIES LISTED ON
THE SIGNATURE PAGES HEREOF
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DATED AS OF FEBRUARY 9, 1998
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TABLE OF CONTENTS
SECTION PAGE
1. DEFINITIONS................................................................................. 1
2. REGISTRATION UNDER THE SECURITIES ACT....................................................... 4
(a) Required Registration................................................................ 4
(b) Incidental Registration.............................................................. 6
(c) Expenses............................................................................. 8
(d) Effective Registration Statement; Suspension......................................... 8
(e) Selection of Underwriters............................................................ 8
3. HOLDBACK ARRANGEMENTS........................................................................ 9
4. REGISTRATION PROCEDURES...................................................................... 9
5. INDEMNIFICATION; CONTRIBUTION................................................................14
(a) Indemnification by the Company........................................................14
(b) Indemnification by Holders............................................................15
(c) Conduct of Indemnification Proceedings................................................15
(d) Contribution..........................................................................16
6. MISCELLANEOUS................................................................................17
(a) No Inconsistent Agreements............................................................17
(b) Amendments and Waivers................................................................17
(c) Notices...............................................................................18
(d) Successors and Assigns................................................................18
(e) Recapitalizations, Exchanges, etc., Affecting Registrable Securities..................19
(f) Counterparts..........................................................................19
(g) Descriptive Headings, Etc.............................................................19
(h) Severability..........................................................................19
(i) Governing Law.........................................................................19
(j) Specific Performance..................................................................19
(k) Entire Agreement......................................................................20
(i)
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of February
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9, 1998, by and between UNITED STATES FILTER CORPORATION, a Delaware corporation
(the "Company"), the Persons listed on the signature pages hereof (herein
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successors referred to collectively, along with their respective Affiliates and
who from and after the date hereof acquire or are otherwise the transferee of
any Registrable Securities (as hereinafter defined), as the "Initial Holders"
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and individually as an "Initial Holder") and any other Person that shall from
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and after the date hereof acquire or otherwise be the transferee of any
Registrable Securities and who shall be a Permitted Transferee (as hereinafter
defined) of any Initial Holder (herein referred to collectively as the "Holders"
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and individually as a "Holder").
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WHEREAS, the Company has entered into an Agreement and Plan of Merger,
dated as of February 9, 1998 (the "Merger Agreement"), with Palm Water
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Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the
Company and Culligan Water Technologies, Inc., a Delaware corporation
("Culligan"), which provides, upon the terms and subject to the conditions
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thereof, for the merger of the Palm Water Acquisition Corp. with and into
Culligan (the "Merger"), with Culligan as the surviving corporation;
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WHEREAS, in consideration of the Merger, among other things, all of
the issued and outstanding shares of common stock of Culligan owned by the
Initial Holders shall be converted into the right to receive validly issued,
fully paid and nonassessable shares of Company Common Stock, par value $.01 per
share ("Common Shares"), as provided in the Merger Agreement; and
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WHEREAS, in order to induce the Initial Holders to complete the
transactions contemplated by the Merger Agreement, the Company has agreed to
provide registration rights on the terms and subject to the conditions provided
herein;
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
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under the Exchange Act.
"Common Shares" shall have the meaning set forth in the preamble.
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"Company" shall have the meaning set forth in the preamble and shall
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also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
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"Incidental Registration" shall mean a registration required to be
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effected by the Company pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
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statement of the Company, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the Securities
Act and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Initial Holder(s)" shall have the meaning set forth in the preamble.
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"Majority Holders" shall mean Holders of Common Shares representing in
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the aggregate a majority of the aggregate number of outstanding Common Shares
beneficially owned by Holders.
"Merger" shall have the meaning set forth in the preamble.
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"Merger Agreement" shall have the meaning set forth in the preamble.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Permitted Transferee" shall mean any Person which would be a
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"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general partnership,
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corporation, trust, joint venture, association, joint stock company or
unincorporated organization.
"Pooling Holding Period" shall mean the period from the effective date
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of the Merger until the publication of the Company's financial results for 30
days of post-Merger combined operations which is sufficient in accordance with
Accounting Series Release No. 135 to permit the disposition of shares of Company
Stock by all former Culligan shareholders, consistent with the requirements for
pooling of interests accounting treatment of the Merger.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Securities" shall mean Common Shares beneficially owned
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by any Holder, but shall not include any Common Share (i) which has been
effectively registered under the Securities Act and disposed of in accordance
with a Registration Statement covering such security (excluding the Company's
Registration Statement on Form S-4 covering the shares of Company Stock which
are to be issued in the Merger or which are issuable in connection
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therewith) or (ii) which has been distributed to the public pursuant to Rule 144
under the Securities Act.
"Registration Expenses" shall mean (i) all registration, listing,
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qualification and filing fees (including NASD filing fees), (ii) fees and
disbursements of counsel for the Company, (iii) accounting fees incident to any
such registration, (iv) blue sky fees and expenses (including counsel fees in
connection with the preparation of a Blue Sky Memorandum and legal investment
survey), (v) all expenses of any Persons in preparing or assisting in preparing,
printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales
agreements, securities certificates and other documents relating to the
performance of and compliance with this Agreement, (vi) the expenses incurred in
connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, and (v) all internal
expenses of the Company (including all salaries and expenses of officers and
employees performing legal or accounting duties); provided, however,
Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement of the
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Company which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Registration" shall mean a registration required to be
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effected pursuant to Section 2(a).
"Required Registration Statement" shall mean a Registration Statement
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which covers the Registrable Securities requested to be included therein
pursuant to the provisions of Section 2(a) on an appropriate form (in accordance
with Section 4(a) hereof) pursuant to the Securities Act, and which form shall
be available for the sale of the Registrable Securities in accordance with the
intended method or methods of distribution thereof, and all amendments and
supplements to such Registration Statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Selling Expenses" shall mean underwriting discounts, selling
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commissions and stock transfer taxes applicable to the shares registered by the
Holders, fees and disbursements of counsel for the Holders retained by them
(other than with respect to the fees and disbursements made in connection with
the preparation of a Blue Sky Memorandum and legal investment survey).
"Securities Act" shall mean the Securities Act of 1933, as amended
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from time to time.
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"Underwriter" shall have the meaning set forth in Section 5(a).
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"Underwritten Offering" shall mean a sale of securities of the Company
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to an Underwriter or Underwriters for reoffering to the public.
(b) Capitalized terms used herein and not otherwise defined shall
have the meanings assigned such terms in the Merger Agreement.
SECTION 2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Required Registration.
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(i) Right to Require Registration. At any time prior to the third
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anniversary of the expiration of the Pooling Holding Period (subject to
extension in accordance with the penultimate paragraph of this Section 2(a)(i)),
one or more Holders of Registrable Securities shall have the right to request in
writing (a "Request") (which Request shall specify the Registrable Securities
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intended to be disposed of by such Holders and the intended method of
distribution thereof) that the Company register such Holders' Registrable
Securities by filing with the SEC a Required Registration Statement. Upon the
receipt of such a Request, the Company will, by the fifth business day
thereafter, give written notice of such requested registration to all Initial
Holders of Registrable Securities, and, not later than the 30th calendar day
after the receipt of such a Request by the Company, the Company will cause to be
filed with the SEC a Required Registration Statement covering the Registrable
Securities which the Company has been so requested to register in such Request
and all other Registrable Securities which the Company has been requested to
register by Holders thereof other than the Initial Holder(s) initiating the
Request by written request given to the Company within 9 business days after the
giving of such written notice by the Company, providing for the registration
under the Securities Act of the Registrable Securities which the Company has
been so requested to register by all such Holders, to the extent necessary to
permit the disposition of such Registrable Securities so to be registered in
accordance with the intended methods of distribution thereof specified in such
Request or further requests, and shall use all reasonable efforts to have such
Required Registration Statement declared effective by the SEC as soon as
practicable thereafter (but in no event later than the 75th calendar day after
the receipt of such a Request) and to keep such Required Registration Statement
continuously effective for a period of at least 60 calendar days (or, in the
case of an Underwritten Offering, such period as the Underwriters shall
reasonably require) following the date on which such Required Registration
Statement is declared effective (or such shorter period which will terminate
when all of the Registrable Securities covered by such Required Registration
Statement have been sold pursuant thereto), including, if necessary, by filing
with the SEC a post-effective amendment or a supplement to the Required
Registration Statement or the related Prospectus or any document incorporated
therein by reference or by filing any other required document or otherwise
supplementing or amending the Required Registration Statement, if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Required Registration Statement or by the Securities
Act, the Exchange Act, any state securities or blue sky laws, or any rules and
regulations thereunder.
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The Company shall not be required to effect, pursuant to this Section
2(a), (x) the initial Required Registration hereunder unless Initial Holders
beneficially owning at least 2,500,000 Common Shares have initiated or joined
in such Request, (y) any subsequent Required Registration hereunder unless
initiated or joined in by Holders beneficially owning the lesser of (i)
2,500,000 Common Shares and (z) more than three registrations in the aggregate
requested by the Initial Holders. For purposes of clauses (x) and (y) of the
preceding sentence, shares of Company Stock purchased after the effective date
of the Merger shall be deemed not to be beneficially owned by the Initial
Holders.
A Request may be withdrawn prior to the filing of the Required
Registration Statement by the Initial Holder(s) which made such Request (a
"Withdrawn Request") and a Required Registration Statement may be withdrawn
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prior to the effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required Registration"),
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and, in either such event, such withdrawal shall be treated as a Required
Registration which shall have been effected pursuant to clause (z) of the
immediately preceding paragraph, except that the Holders may require the
Company to disregard one Withdrawn Request for purposes of such clause (z).
The Initial Holders shall not, without the Company's consent, be
entitled to deliver a Request for a Required Registration after the completion
of the initial Required Registration if less than 90 calendar days have elapsed
since (A) the effective date of a prior Required Registration Statement or (B)
in the case of a Required Registration which is effected other than by means of
an Underwritten Offering, since the sale by the Holders of their Registrable
Securities pursuant thereto or (C) the date of withdrawal of a Withdrawn
Required Registration.
Notwithstanding the foregoing, from and after 91 days following the
termination of the Pooling Holding Period, the Company may delay the filing of a
registration statement required pursuant to this Section 2(a) if the Board of
Directors of the Company determines that such action is in the best interests of
the Company's stockholders and only for a period not to exceed 60 days (a
"Blackout Period"); provided that after any initial Blackout Period the Company
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may not invoke a subsequent Blackout Period until 12 months elapse from the end
of any previous Blackout Period and the number of days in each Blackout Period
shall be deemed to effect a day-for-day extension of the three-year period
referred to in the first sentence of this Section 2(a) and the first sentence of
Section 2(b), and the three-year period referred to in the proviso to the second
sentence of Section 6(a).
The registration rights granted pursuant to the provisions of this
Section 2(a) shall be in addition to the registration rights granted pursuant to
the other provisions of this Section 2.
(ii) Priority in Required Registrations. If a Required Registration
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pursuant to this Section 2(a) involves an Underwritten Offering, and the sole
Underwriter or the lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise the Company in writing (with a copy to each
Holder requesting registration) on or before the date 5 days prior to the date
then scheduled for such offering that, in its opinion, the amount of Registrable
Securities requested to be included in such Required Registration exceeds the
amount which can be sold in such offering without adversely affecting the
distribution of the Registrable
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Securities being offered, the Company will include in such Required Registration
only the amount of Registrable Securities that the Company is so advised can be
sold in such offering; provided, however, that the Company shall be required to
include in such Required Registration first, all Registrable Securities
requested to be included in the Required Registration by the Holders and, to the
extent not all such Registrable Securities can be included in such Required
Registration, the number of Registrable Securities to be included shall be
allocated pro rata on the basis of the number of Common Shares beneficially
owned at that time by all the Holders requesting to participate in the Required
Registration or on such other basis as shall be agreed among the Holders, by
agreement of the Majority Holders; and second, if all Registrable Securities
requested to be included in the Required Registration by the Holders can be so
included, all other securities requesting, in accordance with any registration
rights which are granted in compliance with Section 6(a), to be included in such
Required Registration which are of the same class as the Registrable Securities
and, to the extent not all such securities can be included in such Required
Registration, the number of securities to be included shall be allocated pro
rata among the holders thereof requesting inclusion in such Required
Registration on the basis of the number of securities requested to be included
by all such holders.
(b) Incidental Registration.
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(i) Right to Include Registrable Securities. If at any time prior to
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the third anniversary of the expiration of the Pooling Holding Period (subject
to extension in accordance with the penultimate paragraph of Section 2(a)(i))
the Company proposes to register any of its Common Shares under the Securities
Act (other than (A) any registration of public sales or distributions solely by
and for the account of the Company of securities issued (x) pursuant to any
employee benefit or similar plan or any dividend reinvestment plan or (y) in any
acquisition by the Company, or (B) pursuant to Section 2(a) hereof), either in
connection with a primary offering for cash for the account of the Company or a
secondary offering, the Company will, each time it intends to effect such a
registration, give written notice to all Initial Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
Registration Statement with the SEC pertaining thereto, informing such Initial
Holders of its intent to file such Registration Statement and of the Holders'
rights to request the registration of the Registrable Securities held by the
Holders under this Section 2(b) (the "Company Notice"). Upon the written
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request of any Initial Holder made within 7 business days after any such Company
Notice is given (which request shall specify the Registrable Securities intended
to be disposed of by such Initial Holder and such Initial Holder's Permitted
Transferees and, unless the applicable registration is intended to effect a
primary offering of Common Shares for cash for the account of the Company, the
intended method of distribution thereof), the Company will use all reasonable
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by such Initial
Holders to the extent required to permit the disposition (in accordance with the
intended methods of distribution thereof or, in the case of a registration which
is intended to effect a primary offering for cash for the account of the
Company, in accordance with the Company's intended method of distribution) of
the Registrable Securities so requested to be registered, including, if
necessary, by filing with the SEC a post-effective amendment or a supplement to
the Incidental Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Incidental Registration Statement, if
required by the
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rules, regulations or instructions applicable to the registration form used by
the Company for such Incidental Registration Statement or by the Securities Act,
any state securities or blue sky laws, or any rules and regulations thereunder;
provided, however, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Incidental Registration Statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to each Initial Holder of Registrable Securities
and, thereupon, (A) in the case of a determination not to register, the Company
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses incurred in connection therewith), and (B) in the case of
a determination to delay such registration, the Company shall be permitted to
delay registration of any Registrable Securities requested to be included in
such Incidental Registration Statement for the same period as the delay in
registering such other securities.
The registration rights granted pursuant to the provisions of this
Section 2(b) shall be in addition to the registration rights granted pursuant to
the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration pursuant
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to this Section 2(b) involves an Underwritten Offering of the securities so
being registered, whether or not for sale for the account of the Company, and
the sole Underwriter or the lead managing Underwriter, as the case may be, of
such Underwritten Offering shall advise the Company in writing (with a copy to
each Initial Holder of Registrable Securities requesting registration) on or
before the date 5 days prior to the date then scheduled for such offering that,
in its opinion, the amount of securities (including Registrable Securities)
requested to be included in such registration exceeds the amount which can be
sold in (or during the time of) such offering without adversely affecting the
distribution of the securities being offered, then the Company will include in
such registration first, all the securities entitled to be sold pursuant to such
Registration Statement without reference to the incidental registration rights
of any holder (including Holders), and second, the amount of other securities
(including Registrable Securities) requested to be included in such registration
that the Company is so advised can be sold in (or during the time of) such
offering, allocated, if necessary, pro rata among the holders (including the
Holders) thereof requesting such registration on the basis of the number of the
securities (including Registrable Securities) beneficially owned at the time by
the holders (including Holders) requesting inclusion of their securities;
provided, however, that in the event the Company will not, by virtue of this
paragraph, include in any such registration all of the Registrable Securities of
any Holder requested to be included in such registration, such Holder may, upon
written notice to the Company given within 3 days of the time such Holder first
is notified of such matter, reduce the amount of Registrable Securities it
desires to have included in such registration, whereupon only the Registrable
Securities, if any, it desires to have included will be so included and the
Holders not so reducing shall be entitled to a corresponding increase in the
amount of Registrable Securities to be included in such registration.
(c) Expenses. The Company agrees to pay all Registration Expenses in
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connection with (i) each of three registrations requested pursuant to Section
2(a) (subject to Section 2(a)(i)) and (ii) each registration as to which Holders
request inclusion of Registrable Securities pursuant to Section 2(b). All
Selling Expenses relating to securities registered on behalf of
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Holders shall be borne by the Holders of shares included in such registration,
other selling stockholders and the Company pro rata on the basis of the number
of shares of Common Stock so registered.
(d) Effective Registration Statement; Suspension. Subject to the
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third paragraph of Section 2(a)(i), a Registration Statement pursuant to Section
2(a) will not be deemed to have become effective (and the related registration
will not be deemed to have been effected) unless it has been declared effective
by the SEC prior to a request by the Holders of a majority of the Registrable
Securities included in such registration that such Registration Statement be
withdrawn; provided, however, that if, after it has been declared effective, the
offering of any Registrable Securities pursuant to such Registration Statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective and the related
registration will not be deemed to have been effected.
Any period during which the Company fails to keep any Required
Registration Statement effective and usable for resale of Registrable Securities
shall be referred to as a "Suspension Period." A Suspension Period shall
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commence on and include the date that the Company gives notice that any Required
Registration Statement is no longer effective or usable for resale of
Registrable Securities to and including the date when each Holder of Registrable
Securities covered by such Required Registration Statement either receives the
copies of the supplemented or amended Prospectus contemplated by Section 4(j) or
is advised in writing by the Company that the use of the Prospectus may be
resumed. In the event of one or more Suspension Periods, the applicable time
period referenced in the first paragraph of Section 2(a)(i)) shall be extended
by the number of days included in each such Suspension Period, and, in the event
any Suspension Period occurs sooner than 30 days after the end of the previous
Suspension Period or 30 days after the initial effectiveness of any Required
Registration Statement, none of the days between such Suspension Periods or
prior to such Suspension Period shall be included in computing such applicable
time period.
(e) Selection of Underwriters. At any time or from time to time, the
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Holders of a majority of the Registrable Securities covered by a Required
Registration Statement may elect to have such Registrable Securities sold in an
Underwritten Offering and may select the investment banker or investment bankers
and manager or managers that will serve as lead and co-managing Underwriters
with respect to the offering of such Registrable Securities, subject to the
consent of the Company which shall not be unreasonably withheld. No Holder may
participate in any Underwritten Offering hereunder unless such Holder (a) agrees
to sell such Holder's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, custody agreements, indemnities, underwriting agreements and other
documents required under the terms of such Underwritten Offering.
SECTION 3. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY.
If requested by the sole Underwriter or lead managing Underwriter(s)
in such Underwritten Offering, the Company agrees not to effect any public sale
or distribution (other than,
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in the case of the Company, public sales or distributions solely by and for the
account of the Company of securities issued pursuant to any employee benefit or
similar plan or any dividend reinvestment plan) of any securities during the
period commencing on the date the Company receives a Request from any Initial
Holder and continuing until 90 days after the commencement of an Underwritten
Offering (or for such shorter period as the sole or lead managing Underwriter
shall request) unless earlier terminated by the sole Underwriter or lead
managing Underwriter(s) in such Underwritten Offering.
SECTION 4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company pursuant to Section
2, the Company shall use all reasonable efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities Act
to permit the sale of such Registrable Securities by the Holders in accordance
with their intended method or methods of distribution, and the Company shall:
(a) (i) prepare and file a Registration Statement with the SEC which
(x) shall be on Form S-3 (or any successor to such form), if available, (y)
shall be available for the sale or exchange of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof, and (z) shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all other information reasonably requested by the lead
managing Underwriter or sole Underwriter, if applicable, to be included therein,
(ii) use all reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2, (iii) use all
reasonable efforts to not take any action that would cause a Registration
Statement to contain a material misstatement or omission or to be not effective
and usable for resale of Registrable Securities during the period that such
Registration Statement is required to be effective and usable, and (iv) cause
each Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration Statement,
amendment or supplement (x) to comply in all material respects with any
requirements of the Securities Act and the rules and regulations of the SEC and
(y) not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and file with
the SEC such amendments and post-effective amendments to each such Registration
Statement, as may be necessary to keep such Registration Statement effective for
the applicable period; cause each such Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof, as
set forth in such registration statement;
(c) furnish to each Holder of Registrable Securities and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and
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such other documents as such Holder or Underwriter may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Securities; the Company hereby consents to the use of the Prospectus, including
each preliminary Prospectus, by each Holder of Registrable Securities and each
Underwriter of an Underwritten Offering of Registrable Securities, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or the preliminary Prospectus (the Holders hereby agreeing not to
make a broad public dissemination of a form of preliminary Prospectus which is
designed to be a "quiet filing" without the Company's consent, such consent to
not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if any,
or any Holder of Registrable Securities covered by a Registration Statement,
shall reasonably request; (ii) use all reasonable efforts to keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective; and (iii) do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Underwriter, if any, and Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to consent to be subject to general service of process (other
than service of process in connection with such registration or qualification or
any sale of Registrable Securities in connection therewith) in any such
jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which the Company is a
party, the representations and warranties of the Company contained in such
agreement cease to be true and correct in all material respects or if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (iv) of the happening of any
event during the period a Registration Statement is effective as a result of
which such Registration Statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(v) of the termination of the Pooling Holding Period;
(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
-10-
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits; and furnish to
each Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) cooperate with the selling Holders of Registrable Securities and
the sole Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the governing documents
thereof) and registered in such names as the selling Holders or the sole
Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, may reasonably request at least three business
days prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph (e)(iv)
of this Section, use all reasonable efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus, or
any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
(1) make such representations and warranties to the Holders of such
Registrable Securities and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings;
(2) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the lead managing Underwriter, if any, and the
Majority Holders of the Registrable Securities being sold) addressed to
each selling Holder and the Underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably
requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
Holders of Registrable Se-
-11-
curities, if permissible, and the Underwriters, if any, which letters shall
be customary in form and shall cover matters of the type customarily
covered in "cold comfort" letters to underwriters in connection with
primary underwritten offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders and
such representative of the selling Holders as the Majority Holders of the
Registrable Securities covered by any Registration Statement relating to
the Registration and providing for, among other things, the appointment of
such representative as agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall be
customary in form, substance and scope and shall contain customary
representations, warranties and covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable Securities
being sold or by the managing Underwriters, if any.
The above shall be done (i) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(l) make available for inspection by representatives of the Initial
Holders of the Registrable Securities and any Underwriters participating in any
disposition pursuant to a Registration Statement and any counsel or accountant
retained by such Holders or Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of the Company and cause
the respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Initial Holders of Registrable Securities and to counsel to such
Initial Holders and to the Underwriter or Underwriters of an Underwritten
Offering of Registrable Securities, if any; fairly consider such reasonable
changes in any such document prior to or after the filing thereof as the counsel
to the Holders or the Underwriter or the Underwriters may request and not file
any such document in a form to which the Majority Holders of Registrable
Securities being registered or any Underwriter shall reasonably object; and make
such of the representatives of the Company as shall be reasonably requested by
the Holders of Registrable Securities being registered or any Underwriter
available for discussion of such document;
(ii) within a reasonable time prior to the filing of any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, provide copies of such document to counsel for the Holders; fairly
consider such reasonable changes in such document prior to or after the filing
thereof as counsel for such Holders or such Underwriter shall
-12-
request; and make such of the representatives of the Company as shall be
reasonably requested by such counsel available for discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion in
or listed on The New York Stock Exchange or any securities exchange on which
securities of the same class issued by the Company are then so qualified or
listed if so requested by the Majority Holders of Registrable Securities covered
by a Registration Statement, or if so requested by the Underwriter or
Underwriters of an Underwritten Offering of Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the SEC, including making available to its security
holders an earnings statement covering at least 12 months which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(p) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution and sale
of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding meetings
with potential investors and taking such other actions as shall be requested by
the Majority Holders of Registrable Securities covered by a Registration
Statement or the lead managing Underwriter of an Underwritten Offering.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to the Company such information regarding such Holder required to be
included in the Registration Statement, the ownership of Registrable Securities
by such Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in paragraph (e)(iv) of this
Section, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the affected Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus, contemplated by
paragraph (j) of this Section, and, if so directed by the Company, such Holder
will deliver to the Company (at the expense of the Company), all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities which was current at the
time of receipt of such notice.
SECTION 5. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to indemnify
--- ------------------------------
and hold harmless each Person who participates as an underwriter (any such
Person being an "Underwriter"), each Holder and their respective partners,
-----------
directors, officers and employees and
-13-
each Person, if any, who controls any Holder or Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as incurred
(including fees and disbursements of counsel), incurred in investigating,
preparing or defending against any litigation, investigation or proceeding
by any governmental agency or body, commenced or threatened, in each case
whether or not such Person is a party, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under sub-
paragraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to the Company by such Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(b) Indemnification by Holders. (i) Each selling Holder severally
--- ---------------------------
agrees to indemnify and hold harmless the Company, each Underwriter and the
other selling Holders, and each of their respective partners, directors,
officers and employees (including each officer of the Company who signed the
Registration Statement), and each Person, if any, who controls the Company, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act, against any and all losses, liabilities, claims, damages,
judgments and expenses described in the indemnity contained in paragraph (a) of
this Section (provided that any settlement
-14-
of the type described therein is effected with the written consent of such
selling Holder), as incurred, but only with respect to untrue statements or
alleged untrue statements of a material fact contained in any Prospectus or the
omissions, or alleged omissions therefrom of a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in any such case made in reliance upon and in conformity
with written information furnished to the Company by such selling Holder
expressly for use in such Registration Statement (or any amendment thereto) or
such Prospectus (or any amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified party or
--------------------------------------
parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party or parties will pay the reasonable fees and expenses of
counsel for the indemnified party or parties (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement). No indemnifying party or parties will be liable
for any settlement effected without the written consent of such indemnifying
party or parties, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying party
or parties shall not, except as otherwise provided in this subsection (c), be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms in respect of any
losses, liabilities, claims, damages, judgments and expenses suffered by an
indemnified party referred to therein, each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, liabilities,
claims, damages, judgments and expenses in such proportion
-15-
as is appropriate to reflect the relative fault of the Company on the one hand
and of the liable selling Holders (including, in each case, that of their
respective officers, directors, employees and agents) on the other in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages, judgments or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
liable selling Holders (including, in each case, that of their respective
officers, directors, employees and agents) on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by or on
behalf of the selling Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, liabilities, claims, damages, judgments and expenses referred to above
shall be deemed to include, subject to the limitations set forth in paragraph
(c) of this Section, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
(ii) The Company and each Holder of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in sub-
paragraph (i) above. Notwithstanding the provisions of this paragraph (d), in
the case of distributions to the public, an indemnifying Holder shall not be
required to contribute any amount in excess of the amount by which (A) the total
price at which the Registrable Securities sold by such indemnifying Holder and
its affiliated indemnifying Holders and distributed to the public were offered
to the public exceeds (B) the amount of any damages which such indemnifying
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who controls
a Holder or an Underwriter within the meaning of Section 15 of the Securities
Act (and their respective partners, directors, officers and employees) shall
have the same rights to contribution as such Holder or Underwriter; and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, shall have the same rights to contribution
as the Company.
SECTION 6. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company will not on or after the
--------------------------
date of this Agreement enter into any agreement which conflicts with the
provisions of this Agreement or which grants registration or similar rights nor
has the Company entered into any such agreement, except for the registration
rights which have been granted heretofore pursuant to (i) the Transfer,
Registration and other Rights Agreement dated as of August 31, 1994 by and among
United States Filter Corporation, Xxxxxxx International Investments (Luxembourg)
S.A., Xxxxxxx Investments (Barbados) Ltd., Marfit, S.P.A., Xxxxxxx, Inc. and
Ing. Xxxxxxxx Cominetta, as
-16-
amended by the letter dated May 29, 1996 from Xxxxxxx Inc. to the Company, and
(ii) the Transfer, Registration Rights and Governance Agreement by and among the
Company, Western Farm & Cattle Company, N. N. Investors, L.P., California Land &
Cattle Company, SF Ranch GenPar, Inc., and FW Ranch Partners, L.P., dated as of
September 17, 1997, and the Company will not on or after the date of this
Agreement modify in any manner adverse to the Holders such existing agreements;
provided, however, that nothing in this sentence shall prohibit the Company from
granting registration rights, which become exerciseable from and after the
91/st/ day following termination of the Pooling Holding Period, to any Person (a
"Third Party") who becomes an owner of shares of Company Stock after the date
-------------
hereof (including granting incidental registration rights with respect to any
Registration Statement required to be filed or maintained hereunder) if, and
only if, (i) the Third-Party's registration rights (including, without
limitation, demand registration rights) provide to the Holders of Registrable
Securities who seek to participate in such registration (whether or not such
registration is initiated hereunder) rights no less favorable to such Holders
than those rights provided to the Holders hereunder as if such registration were
a Required Registration (including, without limitation, the priority provisions
contained in Section 2(a)(ii)), provided further however, that if such
registration is not initiated by the Initial Holders such registration shall not
be deemed one of the three Required Registrations for purposes of the
limitations contained in the second paragraph of Section 2(a)(i), and (ii)
require the Third Party to enter into the agreements provided for in Section 3
hereof (as if it were the Company) on the terms and for the period applicable to
the Company (including preventing sales pursuant to Rule 144 under the
Securities Act) if requested by the sole Underwriter or lead managing
Underwriter in an Underwritten Offering initiated by Holders of Registrable
Securities pursuant to Section 2(a). The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Company's other issued and outstanding securities under
any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of a
majority of the Holders and, if any such amendment, modification, supplement,
waiver or consent would adversely affect the rights of any Holder hereunder, the
written consent of each Holder which is affected shall be obtained; provided,
however, that nothing herein shall prohibit any amendment, modification,
supplement, waiver or consent the effect of which is limited only to those
Holders who have agreed to such amendment, modification, supplement, waiver or
consent.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company by means of a
notice given in accordance with the provisions of this paragraph (c), which
address initially is, with respect to each Holder as of the date hereof, the
address set forth next to such Holder's name on the signature pages hereof with
a copy to Xxxxxx X. Xxxx, Esq. and Xxxxx X. Xxxx, Esq., telecopier number (212)
403-2000, and with respect to each Holder who becomes such after the date
hereof, the address of such Holder in the stock or warrant records of the
Company, or (ii) if to the Company at 00-000 Xxxx Xxxxxx, Xxxx Xxxxxx,
Xxxxxxxxxx, telecopier number (000) 000-0000, Attention: General Counsel, and
thereafter at such other address, notice
-17-
of which is given in accordance with the provisions of this paragraph (c), with
a copy to Xxxxx X. XxXxxxxx, telecopier number (000) 000-0000. Notwithstanding
the foregoing, the Company shall not be obligated to provide any notice to any
Holder which is not an Initial Holder except with respect to a Required or
Incidental Registration Statement which has been filed and pursuant to which
such Holder is identified as a selling stockholder.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to a courier guaranteeing overnight delivery.
Notwithstanding the foregoing, nothing in this Section 6(d) is intended to
enlarge the class of Persons which are Holders, as defined in the preamble of
this Agreement, and thus entitled to the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without the need for an express assignment, subsequent
Holders. If any successor, assignee or transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and to receive the benefits hereof.
Notwithstanding the foregoing, nothing in this Section 6(d) is intended to
enlarge the class of Persons which are Holders, as defined in the preamble of
this Agreement, and thus entitled to the rights granted hereunder. For purposes
of this Agreement, "successor" for any entity other than a natural person shall
mean a successor to such entity as a result of such entity's merger,
consolidation, liquidation, dissolution, sale of substantially all of its
assets, or similar transaction.
(e) Recapitalizations, Exchanges, etc., Affecting Registrable
---------------------------------------------------------
Securities. The provisions of this Agreement shall apply, to the full extent
----------
set forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of such
Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, Common Share amounts
hereunder shall be appropriately adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement are for
-------------------------
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agree-
-18-
ment as a whole and not to any particular provision of this Agreement, and
Article, Section and paragraph references are to the Articles, Sections and
paragraphs to this Agreement unless otherwise specified; (4) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless otherwise specified; (5) "or" is
--
not exclusive; and (6) provisions apply to successive events and transactions.
(h) Severability. In the event that any one or more of the
------------
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that there
--------------------
would be no adequate remedy at law if any party fails to perform in any material
respect any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(k) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the Company, on the one hand, and the
other parties to this Agreement, on the other, with respect to such subject
matter.
* * *
-19-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
UNITED STATES FILTER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
APOLLO INVESTMENT FUND, L.P.
By: Apollo Advisors, L.P., its General
Partner,
Address:
------------------------------ By: Apollo Capital Management, Inc., its
Two Manhattanville Road General Partner
Purchase, New York 10577
Attention: Xxxx X. Xxxxx
Telecopier Number:
------------------------------ By: /s/ Xxxx X. Xxxxx
(000) 000-0000 ----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President, Apollo
Capital Management, Inc.
LION ADVISORS, L.P.
Address: By: Lion Capital Management, Inc.,
------------------------------ its General Partner
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
Telecopier Number: -----------------------------
------------------------------ Name: Xxxx X. Xxxxx
(000) 000-0000 Title: Vice President, Lion Capital
Management, Inc.
-20-
